"I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." - Thomas Jefferson (appears in the Jefferson Memorial)

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The story of how and why Jenny Steinke died last summer might be the kind of story that would goad a legislature into action. That’s because, had the legislature voted differently at any point over the last few sessions, she might be alive today.

Jenny Steinke, 36, of Idaho Falls, had for some years endured asthma, but generally managed it with the use of inhalers. In late August, her condition got worse, but she and her husband Jason put off medical treatment until insurance at Jason’s new job started on September 1. For a long time up to then they had been uninsured, since their employers hadn’t provided health insurance as part of the employment package. A serious brush with the medical profession, not to mention an actual useful health insurance policy, was financially either out of reach or a disastrous proposition.

The Steinkes were not a rare fluke case in their lack of health insurance. State officials have estimated 78,000 Idahoans are similarly caught in a gap, outside the provisions for a state health insurance exchange policy, or for Medicaid coverage. In many other states, as part of the Obamacare effort, Medicaid was extended to cover people like the Steinkes. Idaho is one of the states where it hasn’t been; while several task forces have recommended the expansion, the legislature has been resistant.

With medical assistance, asthma usually isn’t life-threatening. But Jenny Steinke’s case got worse quickly, unexpectedly fast, and hit a crisis. By the time she got to an emergency room, she was in a desperate condition. About three days later, she died.

On Tuesday Jenny Steinke’s physician, Kenneth Krell, the critical care director at Eastern Idaho Regional Medical Center, reflected on her case as he spoke to the Senate Health and Welfare Committee about the possibility of Medicaid expansion.

Krell told how the Steinke case, and others not so different, and their implications haunted him: “I kept asking myself, how could this be? How could, in a state like Idaho where we care about each other, could I be seeing deaths and really damaging illness on a nearly daily basis as a result of failure to expand Medicaid that cost tangible lives? It’s difficult to understand.”

He added, “Nearly one patient per day dies in this state as a result of not having Medicaid expansion. And that’s a direct result of that failure to obtain care at a stage when the disease process could be treated effectively and not only death, but hospitalization and illness prevented.”

That adds up, as the headlines around the state noted, to around 1,000 Idahoans who have died over the last three years because the legislature chose not to expand the reach of Medicaid.

After the hearing, no vote on Medicaid expansion was taken by the committee. The chairman did not, however, rule out a vote at some later time.

If Jenny Steinke were the only person who died because of that decision, the moral case involved here would be clear enough. But hundreds of Idahoans dying every year?

All legislative decisions involve weighing the good and the bad, and sometimes those decisions are close and difficult. (This is not, I should note, a case of inadequate resources; the state would actually save money with Medicaid expansion.)

Here, you have a lot of lives on one side of the equation, and on the other side – well, what, exactly, is it in this decision that is worth more than saving a life every day?

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Idaho Idaho column Stapilus

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This digital age makes it possible to preserve much more than people ever could preserve before, including some of our basic public records.

Just because we can does not of course mean we will. Ask the people at the state historical society about trying to preserve, record and make available the masses of records about Idaho’s history. In the context of overall state budgets, the amount spent on that effort is a drop in an ocean, and not nearly enough to do the job comprehensively. But you never know when those efforts can turn out to be critical. Or at least useful.

Here and there, individual efforts are made, and one announced last week by Attorney General Lawrence Wasden is worth some attention – and credit.

Ever since statehood, the obligations of the attorney general have included publishing each year the office’s collected opinions, case activity and related documents. These reports get almost no news attention (they’re a formal compendium of things that have already happened, after all) and probably few people outside the legal system, and only some within it, are even aware of them. But they can be a vital resource for tracing the state’s legal history, and its history overall.

Finding recent copies has usually been easy enough, and sometimes they’ve even been elegantly bound. Law libraries often have copies. But even the state law library doesn’t have all of them. In fact, no one does.

Wasden’s office said their own internal collection starts with the 1891-92 report – the first – and runs to this year. But, “The missing volumes are scattered across the decades and include: the biennial report for 1895-96; the annual report for 1953; the period covering January through June 1954; the period for July through December 1973; and the 1974 report.”

Wasden said, “We searched my office, the historical society, the state law library and even former Attorneys General for these missing publications. It’s unfortunate the set is incomplete, but I’m hoping with public help we can recover these missing volumes.”

Those they do have have been posted online, at http://www.ag.idaho.gov/publications/op-guide-cert/annualReports/historicAnnualReportIndex.html. They’re scanned in as images, so they aren’t always easy to search by text.

Some of them actually make for lively reading, maybe the first one especially.

AG George Roberts wrote an overview that seemed to betray some exasperation with the job. At that time the state had local district attorneys, and Roberts seems to have been disgusted with many of them. “I requested one of the District Attorneys in this State to attend the preliminary examination of a person charged with a peculiarly aggravated and brutal assault upon a woman with a deadly weapon,” he wrote. “He replied by challenging me to show him the section of the law which made it his duty to do so. I admitted that the law did not compel him to, but that a sense of public duty should impel him to do so . . .” The resulting trial, he said, was “a travesty.”

Roberts indicated he was hammered for those local foulups: “This office has been perpetually harassed by questions affecting the performance of public duty, not only by Boards of County Commissioners, but by Precinct and County officers, and School District officers as well.”

A candid review. Maybe attorneys general of today could follow in those candid footsteps. You wonder what they might say.

The release of these past records might even give them some encouragement.

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Idaho Idaho column Stapilus

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In theory, there isn’t much difference in Idaho between the first session of a legislative term, and the second one – like the one just started.

The differences are not exactly subtle but, if informal, they are real, and they can affect the laws the state lives with for years to come.

Many states differentiate clearly between the “odd-year” session, the one (like 2015) right after election year, and the “even-year” session held early within an election year. Washington, for example, has a 105-day limit (a limit often violated anyway) on its odd-year sessions, but just 60 days on its even-year. Until recently Oregon had regular legislative sessions only in odd years; now it allows 160 days in the odd year and 35 in the even. (Idaho has no formal limit on its session length.) There are also some differences in what is routinely considered in those sessions, and what isn’t.

The length difference you notice between those sessions reflects the idea that most of the subject areas that need to be addressed need not be addressed twice in a two-year period. The bar is set relatively low in Washington and Oregon for introducing legislation in the odd year, but only financial matters and higher priorities typically make the cut in the even.

For people in Idaho who wonder if efficiencies can be found in the time legislators spend in session, those examples might suggest one. Idaho could run a longer session in the odds, and a shorter money-oriented session in the even.

It’s not hard to figure out why this approach has happened, and it has to do with elections. In the odd years, legislators are new in their terms, hot off the campaign trail, and want to pursue some of the ideas they talked or heard about. In even years, a primary election is just around the corner, and most legislators would rather get back home early if they can.

Idaho, which went to biennial session in the ate 60s, does not formally differentiate between the two regular sessions – legislation can be considered in one as well as the other. Sometimes advocates of failed legislation in an odd year come back in the even to give it another try, before the same group of legislators. Occasionally it works; more often it doesn’t.

There’s an attempt being made this year, for one example, with the “add the words” legislation, on civil rights. A bill was proposed last year, given several days of committee hearings, then rejected at the committee level on a party-line vote. Democratic Senators Grant Burgoyne and Cherie Buckner-Webb have brought it back, with some amendment reflecting concerns expressed in testimony from a year ago. Its future is unclear. Will Republican legislators be willing to give it another hearing after last year’s marathon, much less send it to a chamber floor? Maybe, but Burgoyne and Buckner-Webb will have a tough job convincing them.

If they do, the reason would be that a number of members, reflecting on last year’s session and the arguments they’ve heard then and sense, may simply have reconsidered their views.

If you think, as many people do (and as Washington and Oregon do) that a second session should be limited and fiscal-oriented so time isn’t spent on retread issues, you may have a point. It works pretty well in a number of states.

But a full-on session in the even years does have its benefits: The chance to reconsider decisions made the year before, sometimes in haste or under pressure. We’ll see soon enough how this session does with this year’s version of decision-making.

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Idaho Idaho column Stapilus

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Education was the centerpiece of Idaho Governor C.L. “Butch” Otter’s state of the state address last week, and that unexpectedly included an element little-heard from in Idaho SOS speeches for a generation: Higher education.

Higher education has been on state policymakers’ back burner for a long time. Up to this year, it has gotten only peripheral mention in Otter’s state of the states; the biggest references have been to his support for local creation of the College of Western Idaho). But by the time Otter took office that had been the norm. Governors Dirk Kempthorne and Phil Batt did much the same.

In 2015, the higher ed reference consisted mostly of a passing reference to “more pronounced, targeted and sustainable investments in such programs as the computer science initiative at Boise State University, an employee readiness initiative at the University of Idaho, career path internships at Idaho State University, and the Complete College Idaho program throughout our higher education system.”

In Otter’s first state of the state he remarked, “ I am recommending that we neither significantly expand
existing programs nor add any major new initiatives would require a continuing revenue flow” – and that certainly seemed to apply to higher education. (His major reference to colleges and universities then was, “Speaking of our universities – how about those Broncos!”)

Last week’s speech was vastly different. To begin, he proposed a good deal of additional funding, a 9.6 percent increase for community college and 8.8 percent for the four-year institutions.

He spoke at some length again about the College of Western Idaho, reasonably since it’s been growing extremely rapidly. He also got the point behind that growth: “That speaks to a huge pent-up demand for the kind of lower-cost, relevant and responsive education and training programs that have been created at CWI.”

But he also delved into activities at other colleges and universities: “Besides additional funding for our college completion and high-demand academic and professional-technical programs, I recommend expanding Boise State University’s materials science program, the University of Idaho’s ‘Go On’ initiative to increase enrollment, and Idaho State University’s health science programs.”

These are major efforts at these institutions, not the small or peripheral programs so often mentioned,

Higher education has been taking a hit in recent years in many states and certainly in Idaho. That is a central, and not often enough mentioned, reason behind the explosion in college tuition and fees.

But Otter had something to suggest about that too. He proposed a “tuition lock” to hold costs steady through the fours years of a standard academic run through the major institutions. He suggested a $5 million increase in the Opportunity Scholarship, which likely will have only modest overall effect.

But then he proposed something new: “that another $5 million be allocated for the new “Completion Scholarship.” It’s designed to encourage Idaho citizens who have some post-secondary education to return to the classroom and finish up. It will provide a real benefit for financially strapped adults who are trying to upgrade their job skills.”

Higher education has been waiting a long time in Idaho for a chance to catch up. Maybe, just possibly, this is the legislative session when it happens. We’ll begin to know as lawmakers weigh in.

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Idaho Idaho column Stapilus

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When Senate President Pro-Tem Brent Hill, R-Rexburg, said last week, “It’s not lost on us that we’re dealing with people’s lives here,” he was saying something that needed to be said . . . in that, a lot of Idahoans probably do think concerns about their health care have been lost on the legislators. Or at least on many of them.

When the Idaho Legislature has in recent years discussed establishing a health insurance exchange, something many other states have, the debate has tended to center on a discussion of just how evil the federal government is. The health of Idahoans wasn’t a factor, at least in their debate. Sometimes didn’t come up at all.

Lawmakers will get another chance to consider all this beginning Monday, when the legislature returns to town and starts to review a proposal on health care from Governor C.L. “Butch” Otter.

Otter has asked committees to look into the subject of expanding Medicare in Idaho as many other states have, and from those panels has gotten back responses in the affirmative. Actually following through remains politically problematic, mainly because the Idaho Legislature has given no indication it wants to go there. Evidently by way of trying to do something that might win legislative support (and it may), Otter proposed last week a $30 million program intended to address the medical needs of the 78,000 or so Idahoans who have no affordable health coverage.

The plan would cover enrollment at a clinic near where people live, and patients there could get an assessment and a plan for meeting their health needs, and maybe a prescription discount. Those are not bad things, and could help some people’s health and maybe reduce emergency room use. But actual substantial medical care, meaning more significant (or expensive) care such as hospitalization, the core of what an expanded Medicaid would provide and the kind of issues that have ruined many lives financially and otherwise, would not be covered.

Idahoans would get a health service some of them don’t have now. But the proposal drew a quick response from a large group of health care providers which pointed out its severe limitations.

Neva Santos, Executive Director, Idaho Academy of Family Physicians, said, “While investing in primary care is useful, as offered by PCAP, it will not provide the needed diagnostic or treatment options to maximally keep patients out of the emergency room or from costly hospitalization.”

Senate Minority Leader Michelle Stennett: “We’re still paying into the Medicaid expansion program we don’t receive any benefit from, so the dollars go to other states. We’re still taking care of CAT fund and indigent funds in our counties and cities, and now we’re being asked as taxpayers to pay $30 million for a new program.”

Expanding Medicaid would, by some estimates, save state taxpayers $173 million over the next decade.

Hill acknowledged that Otter’s proposal wouldn’t cover near what Medicaid would, but “There are other states that are looking at other alternatives that we may learn from, that we may be able to emulate somewhere down the road. We’ve gone 100 years without providing this service, we want to do it right. And this seems like a good step.”

He and Health & Welfare Director Richard Armstrong pointed out too that enacting this program wouldn’t mean Idaho couldn’t do more – such as a Medicaid expansion – later. And that’s true.

But it’s not hard to image future legislators saying, “We already took care of that,” whenever is raised the subject of actual serious medical coverage for the 78,000.

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Idaho Idaho column Stapilus

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Who is it that’s responsible, in the end, for ensuring that people who cannot afford an attorney to defend them in court, get one?

The state says it’s the counties.

The counties say it’s the state.

The responsibility for someone in the government – that is to say, and have no doubt about it, it is our responsibility – is clear. The United States constitution says as much, according to uncontroverted rulings of the United States Supreme Court. Because most criminal cases are based in state rather than federal law, most public defenders operate in systems governed by the states.

Complicating that a bit, courts and clerks are funded mostly on the local level, county by county, and you can make a good argument that public defenders are too, or should be.

Speaking in the latest case – generated by the American Civil Liberties Union – before 4th District Judge Sam Hoagland, Deputy Attorney General Michael Gilmore said that public defender standards and operations are a local matter, not state. And, he seemed to suggest, even if “the state” were considered responsible, there’s no specific office in state government that has the power and budget item to handle public defense.

That really ought to make sense – it really should. The fact that in practice, if not in theory, it doesn’t, owes a lot to the way Idaho operates.

Idaho’s policymakers, meaning its legislators and statewide officials, often talk about how governmental control should be devolved down to the lowest practical level; but that mostly seems to mean federal-state relations rather than state-local. “Home rule” is not strong in Idaho, as the record of legislative session after session has demonstrated. This next session may see the scaleback or even elimination of city urban renewal authority, for one example. But cities have relatively broad freedom to act compared, in most cases, with counties. Practically everything a county does is circumscribed, down to the inch, by state law and regulation. And to a great extent that includes the amount of revenue it can raise, and how it can be spent.

Little wonder the counties, more or less hogtied by the state, are feeling some frustration here.

Dan Chadwick, the longtime executive director of the Idaho Association of Counties, pointed out that at least one county (Canyon) already faced an individual lawsuit over public defense before the ACLU action. Chadwick: “Quite frankly it’s a big frustration for us, and we’re talking about a state responsibility. The only reason it’s a county responsibility is that the state has chosen to delegate that to the counties … no matter what we do and how hard we try to fix it, we end up in court anyway.”

An interim legislative committee has been looking into the situation – it has been recognized by legislators as a serious problem – but seems unlikely to come up with any concrete solutions before the next session convenes.

No comprehensive answers, in any event, could come from expecting each of the 44 counties to individually come up with answers on public defense. That could happen only on the state level, and only if the state figures out some way to pay for it, whether through an ostensibly local tax or through direct state funding.

Either way, the place to look for answers will be the state. And specifically, the third floor of the Statehouse starting next month.

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Idaho Idaho column Stapilus

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I shouldn’t let the year end without following up on a column from one year ago last week, intended then as a bit of advice and also as a cautionary note.

My column probably had nothing to do with it, but the two newly-elected Idaho officials I wrote about – Secretary of State Lawrence Denney and Superintendent of Public Instruction Sherri Ybarra – have turned out better than a lot of people, including me, were expecting.

Both had given good reasons for low expectations.

Denney was a former speaker of the House whose track record was so widely criticized that House Republicans did what no majority caucus had done to a speaker in generations: Booted him from the office. A lot of Republicans in official positions, including the last SecState, Ben Ysursa, signed up with one of the other primary contestants. Concerns were that, in this office where careful record-keeping and down-the-middle fairness were essential (and had been observed for a very long time), Denney would staff up with political hacks and turn the office sharply partisan.

None of that has happened.

Denney has not been a notably controversial figure in 2015, and his office appears to be running on track. He took some flack for his handling of a bill that passed in the legislature, was rejected by Governor C.L. “Butch” Otter but appeared to have missed the veto deadline. Denney sided with Otter; the Supreme Court ruled the other way, but the case was intricate, and Denney adhered to the court’s decision. His handling of this may not have been perfect, but was reasonable. His bigger test will come in the upcoming election season, but year one set a positive tone.

Ybarra was an unusual case of an out-of-nowhere candidate, with little visible organized support, winning first the primary and then the general, surprising a lot of people both times. While she had sound professional background as an educator, she had little to none in the world of education administration, state finance and politics, and ran a campaign that seemed out of touch with almost everyone. The job of a state superintendent is not teaching in a classroom; it has to do with managing budgets, mucking around in the arcane world of education policy, crafting and shepherding legislation and effectively working with a range of interest groups. The Idaho school superintendent doesn’t have a lot of power. Mostly, that person has clout to the extent it can be projected with persuasion, alliances and analysis. Ybarra showed little of that capability in the campaign.

Once in office, though, she began to do that. In the last year, a superintendent’s office formerly highly ideological has moved into working smoothly and professionally with educators and others around the state, taking a lead in solving a string of inherited problems (school broadband, a really tough nut, maybe most notable) and finding more broadly acceptable policy choices.

Why did they do so much better than expected?

A year ago, I made five suggestions. First, keep most of the existing staff in place so the office keeps running. Second, spend plenty of time in the office to get a feel for how it operates. Third, collect a group of people with expertise in the area from outside and set them up as an informal sounding board. The last two applied most strongly to Ybarra: reach out to the constituencies concerned with your office, and reach out to the public on any policy directions you’re planning.

But both of them seem to have done these things, to one degree or another. Both seem to have taken the work of their offices seriously and not used them as personal or ideological soapboxes.

Sometimes, now and again, what you elect turns out better than you expect.

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Idaho Idaho column Stapilus


The signing of the final decree of the Snake River Basin Adjudication in August 2014 must have felt to some people like an end of Idaho water history – and it was the conclusion of a major chapter in that history. But by no means the end of all of it.

In fact, in some ways it opened whole new areas for conflict and dispute, which is not a criticism but a way of saying that what the SRBA really did, which was to clarify who had rights to what water, was to nail down facts but not make policy judgments about what should be done with them. The reality is that there’s less water in the Snake River basin than Idahoans would ideally like to have, and that means there’ll be conflict.

One policy area where Idaho has been notably successful, an arena where other states could usefully draw positive lessons, over the years has been water management. This video (sent our way by former newspaper colleague Steve Steubner, who worked on it) outlines usefully what some of the issues are now and how they’re being addressed. At least for now. This is a territory where the debates will be going on for a very long time. – rs

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First Take Idaho

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When the Idaho Legislature convenes next month, it will have to place its bets on the sales tax, just as the League of Women Voters already has.

The reason is a proposed initiative just released by the Idaho League of Women Voters “reducing the sales tax rate and broadening the sales tax base.” It does that most basically, by reducing the overall rate from six percent to five, and by extending the coverage of the tax to include not just many goods but also many services, which generally have been exempt.

The whole matter of sales tax exemptions has been a heavily chewed-over bone throughout the tax’s half-century in Idaho. When passed amid high controversy in 1965, the sales tax started (originally at three percent) with few exemptions, though it didn’t reach to include services. Over the 50 or so legislative sessions since, few have adjourned without some adjustment to the tax, generally by way of exempting someone or something. Lobbyists have kept busy in Boise on that front for decades.

And just as busy blocking the periodic attempts (they seem to average about one a decade) to scale back some of the exemptions, which from time to time have been the subject of study committees, sometimes legislative. Many legislators over the years have argued that the exemptions are just too many, that almost everyone who comes before the legislature asking to be exempted gets their way. Not everyone has, but the list of happy exemptees is long.

There are good reasons for some exemptions, especially in cases where the same product, because it’s passed along through a supply and delivery chain, might be taxed multiple times. (That is why retailers do not pay a sales tax when they buy from suppliers, though they collect it upon sale to consumers.) There are other rational arguments as well, though you can move quickly into the murky waters of rationalization.

In addition to the risk of advantaging the exempted over the payers in places where they may be in competition, there’s the simple money equation: Exempt a transaction from sales tax and you’re bringing in less money. The League’s proposal, driven by decades of legislative refusal to meaningfully revisit the exemption roster, makes the point. It is able to reduce the tax by one cent on the dollar and still raise an estimated $424 million more than at present, by removing a number of exemptions and covering many services.

That is not all the 20-page initiative does; it is a highly complex piece of tax legislating, and would be one of the more complex initiatives put on the Idaho ballot in many years. If it goes to ballot, a careful parsing will be called for.

If the signatures for it can be obtained – and the guess here is that a competent effort will get them – will it be passed by voters? It can after all be presented as a tax reduction measure (even if it does wind up generating more tax revenue). It might even be presented as property tax relief, if some of the money were used to replace local property tax levies for schools. It would be bitterly opposed, but the chances of passage are not bad.

So, we get to betting time, as the legislature convenes while the initiative petition signature effort begins. The best way the legislature could cut the initiative off at the pass would be to approve substantial sales tax exemption revisions this session. The point of an initiative is to do what a legislature would not; if the legislature shows it can act, the initiative may become moot. If they essentially ignore the initiative, legislators may give it an extra boost.

The League is betting too, on passage: If signatures cannot be gotten, or if the initiative fails at the polls, exemption changes may be dead for another decade, or two.

Some high stakes are emerging here.

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Idaho Idaho column Stapilus